The Border Patrol’s sweeping powers inside the U.S. lack accountability and perpetuate racial profiling.
Senator Patrick Leahy has a distinctive license plate: a single digit “1” on Vermont tags. But, as he told a 2018 Senate Judiciary Committee hearing, neither that plate nor his driving seventy-five miles from the Canadian border stopped an immigration officer from pulling him over in his home state. “I asked the Border Patrol officer by what authority he was stopping me,” Leahy recounted. “He patted his gun and said that’s all the authority he needed.”
Recent debates about immigration have, understandably, focused on the plight of arrivals at the southern border. But Senator Leahy’s story offers a dramatic insight into an under-discussed element at the intersection of law enforcement and immigration control: the broad powers that allow federal authorities to conduct stops well beyond the border.
At dozens of internal checkpoints across the country, Border Patrol agents stop and question passing motorists on their citizenship. Elsewhere, officers engage in roving traffic stops aimed at interdicting illegal immigration inside the United States. Agents at checkpoints require neither a warrant nor individualized suspicion to stop passing motorists and inquire about the occupants’ citizenship, or to inspect private lands within twenty-five miles of the border. Taken together, these “defense in depth” measures amount to an extraordinarily expansive law enforcement effort carried deep into the U.S. interior.
These powers long precede the current debate on immigration. And, after four years of an administration that sought to weaponize cruelty in border control and against the lives caught in its web, it can be tempting to focus on the acute situation at the southern border or the prospects for the Biden administration’s ambitious immigration reform proposal to Congress. But the current administration should have another, less-discussed target in its sights: ending U.S. Border Patrol's sweeping powers to conduct warrantless stops, on citizens and non-citizens alike, miles from the U.S. border.
U.S. Border Patrol is tasked with securing tens of thousands of miles of land and coastal borders. The magnitude of this undertaking is reflected in the division’s sprawling size: Border Patrol’s nearly $5 billion annual budget supports over 20,000 agents—about the size of the Secret Service and FBI combined—making it one of the largest federal law enforcement bodies in the country.
Border Patrol agents are authorized by statute to search for illegal immigrants, without a warrant, provided such searches take place “within a reasonable distance from any external boundary of the United States.” Regulatory interpretation of “reasonable distance” provides that the authority to search extends up to 100 miles from a border, an area estimated to cover nearly two-thirds of the U.S. population.
Aided by two Supreme Court decisions in the 1970s—Brignoni-Ponce in 1975 and Martinez-Fuerte in 1976—Border Patrol’s powers in the 100-mile zone have expanded to allow interrogations of drivers’ citizenship at checkpoints without individual suspicion of illegal activity. Worse still—in a line shielded from infamy only by its obscurity—the Court held in Martinez-Fuerte that “even if [checkpoint inspections] are made largely on the basis of apparent Mexican ancestry, we perceive no constitutional violation.”
When the Supreme Court thus cloaked racial profiling by immigration officers in legality, it predicted that the fixed nature of checkpoints would mean “that the stops should not be frightening or offensive.” The “potential interference with legitimate traffic is minimal,” the majority further asserted, when compared with the utility of checkpoints in deterring and intercepting illegal immigration.
In a powerful dissent, however, Justice Brennan warned against this “evisceration” of Fourth Amendment rights. “The process will then inescapably discriminate against citizens of Mexican ancestry and Mexican aliens lawfully in this country,” he wrote, with the consequence that
Every American citizen of Mexican ancestry, and every Mexican alien lawfully in this country, must know after today's decision that he travels the fixed checkpoint highways at the risk of being subjected not only to a stop, but also to detention and interrogation, both prolonged and to an extent far more than for non-Mexican appearing motorists. […] That law in this country should tolerate use of one's ancestry as probative of possible criminal conduct is repugnant under any circumstances.
Time has proven the prescience of Justice Brennan’s warning. Though the Department of Homeland Security (DHS) does not record the reason for or number of stops not ending in arrest, making the scale of its operations difficult to quantify, reports of stops for speaking Spanish, for perceived accent, or for “appearing of Central American origin” proliferate. Even as Department of Justice and DHS guidance decry the “invidious use of race or ethnicity” in law enforcement, official policy appears to carve out an exemption for border patrol activities, where race may allow “consideration of a person’s alienage.” (At the time of publication, DHS had not responded to a request for comment on the policy.)
Disconcertingly, while DHS continues to assert that checkpoints are a valuable tool in immigration enforcement, the evidence strongly indicates otherwise. A 2017 Government Accountability Office audit of Border Patrol checkpoints between 2013 and 2016 found that 58% of all checkpoint seizures were of marijuana from US citizens. Of those seizures, 69%—or 40% of all checkpoint seizures—were for quantities of one ounce or less. Despite their putative value in intercepting illegal immigration, checkpoints accounted for only 2% of all apprehensions of individuals classified by federal authorities as illegal aliens. In congressional testimony in 2016, then-Border Patrol Chief Mark Morgan offered similar figures.
In short, Border Patrol checkpoints sacrifice civil liberties in the name of targeted immigration enforcement. Instead, however, they have formed a sweeping dragnet more successful at catching US citizens with marijuana than non-citizens stealing their way into the interior. Finally, as the deployment of Border Patrol tactical units to Portland and D.C. last summer demonstrated, the unique powers accorded to immigration agents are ripe for aggressive executive interpretation.
Here are three paths for reform:
First, end the legal use of ethnic or racial appearance in immigration searches. The Department of Homeland Security should issue updated guidance to Customs and Border Protection removing race from the permissible list of indicia of suspicion. This would follow in the lead of the 9th Circuit Court of Appeals, which concluded that the limited probative value of racial profiling makes it an unsuitable indicator for use in immigration enforcement.
Second, curtail the scope of Border Patrol’s exceptional stop powers. Congress should take up and pass Senator Leahy’s Border Zone Reasonableness Restoration Act, first proposed in 2019. The Act would reduce the current 100-mile zone to 25 miles for vehicle stops. In the absence of swift congressional action, the Biden administration should propose a change to the Code of Federal Regulations, redefining “reasonable distance” as 25 miles or fewer from the border.
Third, promote data-driven accountability. Both parties in Congress should move forward with the Department of Homeland Security Accountability and Transparency (DATA) Act, which would offer significantly increased reporting and transparency on how frequently and for what reason motorists are stopped at internal checkpoints. With these data in hand, politicians and civil society can hold DHS to account. Crucially, the Act would also disincentivize arbitrary stops by increasing the bureaucratic burden they entail.
In the coming search for common ground on immigration reform—and amid a national conversation on race and law enforcement—the Biden administration has the opportunity to rein in Border Patrol’s overbroad and ineffective checkpoint policy. Until then, “border security” will continue to mean insecurity for the tens of millions of Americans within 100 miles of the border—and dismay for all those for whom the question “were you born here?” is intolerably odious in a nation of immigrants.
David Hamburger is Director of Operations at Persuasion.
We have 30 million foreign nationals in this country without permission, with hundreds of thousands more arriving every year. The "asylum" process is a complete joke at this point, and has been abused to the point that it should probably be scrapped entirely and replaced with something else. Perhaps we can finance asylum processing in Mexico for Central Amercans - that will magically shrink ayslum claims 90%.
I would be more sympathetic to the concerns the author presents here if he was willing to even pretend to be concerned about illegal immigration and acknowledge the larger problem at hand which these imperfect solutions are attempting to grapple with. In the absence of that this reads to me like more of the endless neoliberal open borders propaganda we get a never-ending torrent of.
I'm unclear why ethnic profiling in this specific context is intrinsically a Bad Thing. Perhaps others could help me understand?